Central Administrative Tribunal - Jaipur
Raja Ram Rastogi vs M/O Railways on 9 February, 2023
(OA No.45/2014)
(1)
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
O.A.No.45/2014
With
M.A.No.318/2017
M.A.No.339/2017
Reserved on:31.01.2023
Pronounced on:09.02.2023
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
1. Raja Ram Rastogi S/o Late Shri B.R. Rastogi a/a 56
Years R/o Gali No.7 Poonam Colony District Kota.
Presently working as Senior Section Engineer under
Chief Works Manager, West Central Railway at Kota.
2. Pramod Kumar Sharma S/o Shri Ram Chandra Sharma
a/a 57years R/o 577,Behind Emanual School, Dadwara,
District Kota. Presently working as Senior Section
Engineer under Chief Works Manager, West Central
Railway at Kota.
3. Pradeep Kumar Chawla S/o Late Shri Hari Krishna
Chawla a/a 53years R/o Near Natraj Cinema District
Kota. Presently working as Senior Section Engineer
under Chief Works Manager, West Central Railway at
Kota.
4. Rajendra Prasad Pandey S/o Shri Kamla Prasad Pandey
a/a 57years R/o 11, Sunder Nagar District Kota.
Presently working as Senior Section Engineer under
Chief Works Manager, West Central Railway at Kota.
5. Mahesh Dutt Sharma S/o Shri SomDutt Sharma a/a 53
years R/o 16A, Adarsh Colony, Mala Road District Kota.
Presently working as Senior Section Engineer under
Chief Works Manager, West Central Railway at Kota.
6. Abdul Alim Mansuri S/o Shri Mohammad Hafiz Mansoori
a/a 52 years R/o Gali No.2, Sanjay Nagar District Kota.
Presently working as Senior Section Engineer under
Chief Works Manager, West Central Railway at Kota.
(OA No.45/2014)
(2)
7. Ajit Kumar Singh S/o Shri Kripendra Pal Singh a/a 53
years R/o House No.4, Near Natraj Cinema District
Kota. Presently working as Senior Section Engineer
under Chief Works Manager, West Central Railway at
Kota.
8. Om Prakash Sharma S/o Shri Inder Lal Sharma a/a 51
years R/o 4B-14, Atwal Nagar Police Line, District Kota.
Presently working as Senior Section Engineer under
Chief Works Manager, West Central Railway at Kota.
9. Jagat Singh Srivastava S/o Shri Gur Sewak Das
Srivastava a/a 52 years R/o 215-A, Type-IV Railway
Workshop Colony, District Kota. Presently working as
Senior Section Engineer under Chief Works Manager,
West Central Railway at Kota.
10. Chandra Prakash Dube S/o Shri Devki Nandan Sharma
a/a 57 years R/o Flat No.B-403, Shrinath Orchid, Mala
Road, District Kota. Presently working as Senior
Section Engineer under Chief Works Manager, West
Central Railway at Kota.
11. Rajendra Prasad Gupta S/o Shri Ram Sahay Gupta a/a
55 years R/o 26/10 Saraswati Colony, Baran Road,
District Kota. Presently working as Senior Section
Engineer under Chief Works Manager, West Central
Railway at Kota.
12. Chhari Ram Maurya S/o Shri Gokaran Prasad a/a 52
years R/o 56-57/2, Durga Nagar Poonam Colony
District Kota. Presently working as Senior Section
Engineer under Chief Works Manager, West Central
Railway at Kota.
13. Nalin Parashar S/o Shri Prabhu Lal Parashar a/a 50
years R/o 406, Harjeet Sadan Emmanual School Road,
Dadwara, District Kota. Presently working as Senior
Section Engineer under Chief Works Manager, West
Central Railway at Kota. ...Applicants
(By Advocate: Shri C.B.Sharma)
(OA No.45/2014)
(3)
Versus
1. Union of India through General Manager, West Central
Railway, Jabalpur, H.Q. Office, Indra Market, Jabarpur.
2. Chief Workshop Manager, West Central Railway, Kota
Workshop, Kota.
3. Sr. Personal Officer, (Ka) West Central Railway, Kota.
...Respondents.
(By Advocates: Shri V.D.Sharma)
ORDER
Per: Dinesh Sharma, Member (A):
In this Original Application, the applicants have prayed for the following reliefs:
"(I) That this Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned notices dated 11.09.13 (A/1), order dated
02.12.13 & 13.11.13 (A/2), order/letter dated 09.07.13 (A/3)& the order dated 30.09.13 & 05/09-12-13 (A/4), by which the benefits of 3rd MACP have been withdrawn and recovery to be made in terms of excess payment.
(II) That the respondents may further be directed to restore the orders by which petitioners were granted 3rd financial up-gradation (3rd MACP) in Grade Pay of Rs.5400/-) and pay the benefit regularly.
(III) Any other order which this Hon'ble Tribunal may deem fit and proper as per the facts and circumstances of the case, be passed in favour of the petitioner."
2. Very briefly summarized, the case of all the applicants arises from the illustration given under Para 28 of the MACP Scheme (Annexure A/5), according to which, the applicants (OA No.45/2014) (4) say, they have become eligible for grant of the 3rd MACP benefit after the completion of 20 years of service(without promotion) from the date of their first promotion. Since the promotion of all these applicants happened before completion of 10 years of service, they are entitled to get this 3rd MACP before completion of 30 years of service. They had been granted the MACP benefit, following this illustration, but now it is being sought to be withdrawn and the alleged excess amounts recovered, following a clarification dated 09.07.2013, interpreted wrongly, by orders/letters (impugned orders at Annexure A/1 dated 11.09.2013 and Annexure A/2dated 02.12.2013 and 13.11.2013).
3. The respondents have denied the claims made by the applicants. They have questioned the clubbing of all these applicants in one Original Application, since the applicants have different dates of appointment/promotion. It is stated that in all these cases, the 3rd MACP was granted, counting 20 years from the first promotion, which was erroneous. Under the MACP Scheme, the benefits are due on completion of 10,20 and 30 years of service, if the employee does not get any other promotion/upgradation in due course. The respondents have a right to recover the wrongly paid excess amounts. The applicants were given Show Cause Notice (OA No.45/2014) (5) before correcting this mistake and their pays have been revised only after giving these notices. The Original Application therefore deserves to be dismissed.
3. This Tribunal, by its orders dated 24.01.2014 had stayed the implementation of the impugned orders dated 30.09.2013 and 05/09.12.2013. The respondents have filed MA No.318/2017 on 05.07.2017 for vacation of interim order and MA No.339/2017 for direction from this Tribunal.
4. The matter was finally heard on 31.01.2023. Both the learned counsels repeated the arguments mentioned in their respective pleadings. The following decisions were produced by the learned counsels of the parties after the matter was reserved for orders:
On behalf of the applicants
i) Smt. Manju Vashistha & Others vs. Union of India & Others of the CAT, Principal Bench in OA No.1288/2014 decided on 23.05.2016.
ii) Union of India & Others vs. Smt. Manju Vashistha & Others of the Hon'ble Delhi High Court vide Writ Petition (Civil) No.11826/2016 decided on 03.02.2017.
(OA No.45/2014) (6) On behalf of the respondents
i) High Court of Punjab and Haryana and Others vs. Jagdev Singh of the Hon'ble Supreme Court (2017) 2 SCC (L&S) 789.
ii) Chandra Prakash Yadav & Another vs. Union of India & Others of the CAT, Jaipur Bench in OA No.20/2014 decided on 06.02.2020.
5. After going through the pleadings and hearing the arguments, we find that the basic issue in this Original Application is whether, under the circumstances of this case, the benefit of 3rd MACP can be given on completion of 20 years from the date of first promotion (which happened within 10 years of entry into service), or it should wait for completion of 30 years from the date of entry into service. The same issue, in one or the other form, has been agitated before various Benches of this Tribunal. There have been decisions, including one by the Jodhpur Bench of this Tribunal (Kalu Ram & Others vs. Union of India & Others vide OA No.290/00376/2014 & OA No.290/00017/2015 decided on 24.04.2019), and those listed above, where a stand favorable to the arguments adduced by the applicants was taken. The decision of the CAT, Principal Bench, dated 23.05.2016, in OA No.2188/2014 is by a Larger Bench of this Tribunal which has been upheld by the Hon'ble High (OA No.45/2014) (7) Court of Delhi in their judgment dated 03.02.2017. These decisions also support the stand taken by the applicants. The decision of the Jodhpur Bench of this Tribunal, we are informed, has been challenged by the respondents in a Writ Petition(No.7297/2019), and the Hon'ble High Court has stayed the implementation of that decision by their orders dated 30.05.2019. However, there are other decisions, including a more recent decision by the Bangalore Bench of this Tribunal (I.A. Nagendra Rao vs Union of India & Another dated 02.02.2022, inO.A.No.170/390/2020/CAT/Bangalore Bench), which we cannot fail to take judicial notice of. This decision fully supports the stand taken by the respondents.
6. We are reproducing here the illustration 28 of the R.B.E. No.101/2009 on which the applicants have based their claim:
"28. Illustration:
A (i) If a Railway servant (LDC) in PB-I in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in PB-I in the Grade Pay in the Grade Pay of Rs.2400 on completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under the MACPS in PB-I in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).
(ii) In case he does not get an promotion thereafter, then he would get 3rd financial upgradation in PB-2 in Grade Pay of Rs.4200 on (OA No.45/2014) (8) completion of further 10 years of service i.e. after 28 years (8+10+10)."
7. A plain reading of the above illustration does lead one to conclude that it enables grant of 3rd MACP benefit to the applicants before completion of 30 years, since counting 20 years from their first actual promotion (which happened before 10 years into service), would make them reach that eligibility level before 30 years. However, in all these cases before us, the actual benefits of the MACP that became due before the coming into force of the MACP Scheme, were given effect from the date from which the 6th CPC was implemented (1st September, 2008). If this date is considered as the date on which the 2nd MACP is given, then the eligibility for the 3rd MACP will be on completion of 30 years of service (as the condition about or 10 years in the same grade would be fulfilled much later). It is this second interpretation which has been followed in the more recent judgment of the Bangalore Bench of this Tribunal in I.A. Nagendra Rao vs Union of India & Another (supra). The decision bases its conclusion on the judgment of the Hon'ble Supreme Court in Union of India versus R.K. Sharma & Others, dated 28th April, 2021 in Civil Appeal No. 1579 of 2021 arising out of SLP (C) No.15572 of 2019 and also on the recommendations of a committee that was constituted following the directions of the Hon'ble Supreme Court in (OA No.45/2014) (9) Union of Indian vs. M.V. Mohanan Nair. The committee's decision, on this matter, quoted in the judgment of the Bangalore Bench, is reproduced below:
"53. However, as pointed out earlier in para Nos. (47), (48) and (49), since certain anomalies on implementation of the MACP Scheme have been brought to the notice of the Joint Committee in the various meetings of the Joint Committee, Union of India and DoP&T to consider the same as they deem it appropriate and take a decision in accordance with law."
25. In compliance of these directions of Hon'ble Apex Court indicated above, the issues arising out of deliberations of the Joint Committee constituted to examine the MACP Scheme, and which were not finally disposed of, were examined by the DOPT in consultation with Department of Expenditure. The decisions taken on the issue, relevant to the case in hand, have been conveyed vide OM No:
F.No.22034/4/2020-Estt.(D) dated 5th April, 2021. The issue regarding grant of 3rd MACP after 20 years of service from the date of first promotion has been examined in this OM, and the decision taken has been conveyed as under:
Item No.9: Employees who got one promotion or 1st ACP prior to 01.09.2008 and have completed over two decades of service without benefit of promotion may be granted third upgradation under the MACPS on 1.9.2008 (Para 12 of Minutes of the meeting of Joint Committee held on 27.07.2012).
Decision: As per the MACPS guidelines, there shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 0, 20 and 30 years of service respectively, or after 10 years of continuous service in the same Grade Pay or Pay Level in Pay Matrix, whichever is earlier. Thus, those employees who got either one promotion or 1st ACP before 1.1.2006 and who did not earn any promotion or 2nd ACP during 1.1.2006 to 31.8.2008, are eligible for 2nd MACP on or after 1.9.2008 (i.e. due on completion of 20 Years) and 3rd MACP after 30 years of service or 10 years in the same Grade Pay/Pay Level, as the case may be, if found otherwise eligible. Hence, (OA No.45/2014) (10) there is no ground for grant of 3rd MACP straight away on 1.9.2008, without the employee earning 2nd MACP, as per provisions of the MACPS.
Therefore, the request of the Staff Side cannot be acceded to and the item is treated as closed.
(Emphasis added)
8. We find ourselves in total agreement with this recent decision of the Co-ordinate Bench of the Tribunal. The decision of the CAT Principal Bench, though of a larger Bench, was before the decisions of the Hon'ble Supreme Court following which the committee to look into the anomalies of the MACP Scheme was constituted. The decision of the Bangalore Bench has considered all the aspects of the same matter and has come to the conclusion, under circumstances similar to those of the applicants here, that there cannot be a 3rd MACP benefit before completion of 30 years. Following this, we do not find merit in the claim made by the applicants to quash the impugned orders.
9. The applicants have prayed for stopping recovery only on the grounds of alleged illegality of the impugned orders. They have not sought that relief on ground of the decision of the Hon'ble Supreme Court orders in State of Punjab and Others etc. vs. Rafiq Masih (White Washer) etc. AIR 2015 SCC 1267 or the decisions of the respondents following that. Though no such specific claim was made by the (OA No.45/2014) (11) applicants, the respondents have produced the decision in Jagdev Singh (supra) to justify recovery in cases of specific undertaking given by an employee. As this matter (about whether or not recoveries are barred following Rafiq Masih's case) was not part of the pleadings, and no evidence was produced either to support or deny such recovery, we are not in a position to decide on that. However, while we are not allowing all the reliefs prayed in this Original Application, we expect the respondents not to make any recoveries from the applicants, of the excess paid amounts, if it is impermissible under Rafiq Masih's judgment and does not come under exceptions given in Jagdev Singh's case.
10. To summarize, while we are not allowing the reliefs prayed for by the applicants, we direct the respondents not to conduct any recoveries if these come under the purview of those made impermissible under Rafiq Masih judgment. The Original Application, MA No.318/2017 for vacation of interim order and MA No.339/2017, for direction, are disposed of accordingly. No costs.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/